Citation Nr: 0932036
Decision Date: 08/26/09 Archive Date: 09/04/09
DOCKET NO. 07-08 625 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island
THE ISSUES
1. Entitlement to an increased rating for residuals of
diskectomy at L4-5 for herniated nucleus pulposus, currently
rated 60 percent.
2. Entitlement to a total rating for compensation purposes
based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and Spouse
ATTORNEY FOR THE BOARD
D. Johnson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1961 to July
1965, December 1998 to December 1999, and from January 2000
to August 2000.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from decisions rendered by the Providence, Rhode
Island Regional Office (RO) of the Department of Veterans
Affairs (VA), in which a 60 percent rating was continued for
a back disorder and entitlement to TDIU was denied.
The Veteran testified before the undersigned in May 2009. A
transcript of the hearing is of record.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Residuals of diskectomy at L4-5 for herniated nucleus
pulposus
At the Veteran's hearing in May 2009, he testified that his
back disability had worsened since the last VA examination
that was held in August 2006. The duty to assist may require
"the conduct of a thorough and contemporaneous medical
examination, one which takes into account the records of
prior medical treatment, so that the evaluation of the
claimed disability will be a fully informed one." See Green
v. Derwinski, 1 Vet.App. 121, 124 (1991). Thus a new
examination is warranted to evaluate the current nature and
severity of the Veteran's back disorder.
The Veteran also stated that he had been receiving ongoing
treatment for his back at a VA medical center (VAMC). The VA
outpatient treatment records in the claims file are current
only up through March 2008. These records are considered
part of the record on appeal since they are within VA's
constructive possession, and must be considered in deciding
the appellant's claim. See Bell v. Derwinski, 2 Vet. App.
611, 613 (1992); see also 38 C.F.R. § 3.159(c)(2) (2008).
TDIU
The Veteran avers that his service-connected back disability
prevents him from obtaining or maintaining gainful
employment.
The Veteran has a single compensable service-connected
disability, which is residuals of diskectomy at L4-5 for
herniated nucleus pulposus, rated 60 percent disabling.
Accordingly he meets the percentage criteria for a TDIU.
38 C.F.R. § 4.16(a). The material issue is whether his back
disability precludes substantially gainful employment
consistent with his education and occupational experience.
38 C.F.R. §§ 3.321, 4.16; see Hatlestad v. Brown, 5 Vet. App.
524, 529 (1993). There is no competent medical opinion of
record in this regard.
Records from the Social Security Administration (SSA) show
that the Veteran was determined to have been disabled as of
February 2004, due to a primary diagnosis of disorders of the
back and a secondary diagnosis of peripheral (arterial)
vascular disease. An SSA Physical Residual Functional
Capacity Assessment (completed by a medical consultant) shows
that the Veteran's limitations included heavy lifting,
repetitive bending, and prolonged walking. The Board notes
that the clinical evaluation, medical records, and subjective
symptoms reported by the Veteran relied upon for SSA's
disability determination are dated from 2001 to 2004.
More recently, a VA examiner reported that upon examination
of the Veteran he found no current residuals from the prior
disk surgery and that the Veteran had made a complete
recovery. His findings indicated that the Veteran had no
neurologic deficits (motor or sensory), no limitation of
motion, and no additional range-of-motion loss due to any
weakened movement, excess fatigability, incoordination, pain,
or flare-ups pursuant to DeLuca v. Brown, 8 Vet. App. 202
(1995). The examiner did not, however, address whether the
Veteran was unable to secure or maintain substantially
gainful employment due to his service-connected back
disability.
At the May 2009 hearing, the Veteran testified that he was
unable to walk, stand, or sit for prolonged periods. He also
stated that he had limited motion and was unable to perform
household chores and yard work. He testified that he has
primarily worked in physically demanding jobs, and due to his
increased back pain he is unable to work anymore.
A current medical opinion is needed to determine the current
effect of the service connected back disability on the
Veteran's employability.
In addition, there is a notation in the file which indicates
that the Veteran has a vocational rehabilitation folder. If
such folder exists, it may contain information which has a
bearing on the TDIU claim, it must be obtained. See Bell, 2
Vet. App. 611, 613 (1992); see also 38 C.F.R. § 3.159(c)(2)
(2008).
Accordingly, the case is REMANDED for the following action:
1. The agency of original jurisdiction
(AOJ) should obtain the Veteran's
vocational rehabilitation file and all
records of VA treatment for a back
disability since March 24, 2008.
2. The Veteran should undergo a VA
orthopedic examination to determine the
current severity of his service-connected
back disorder, including any neurologic
manifestations. The examiner should note
review of the claims folder.
All indicated tests and studies should be
performed. The examiner should report the
ranges of back motion, in degrees, as well
as any additional limitation that is
attributable to functional factors such as
weakened movement, excess fatigability,
incoordination, flare-ups, or pain.
3. The examiner should provide an opinion
as to whether the Veteran's back
disability would preclude employment for
which he would otherwise be qualified. A
rationale should be provided for the
opinion.
The examiner is advised that the Court has
held that a medical opinion must take into
account the history reported by the
Veteran.
4. If the claims remain denied, the AOJ
should issue a supplemental statement of
the case before returning the case to the
Board, if otherwise in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).